Piedsup2.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII


WILLIAM D. HOSHIJO, ) Docket No. 98-007-E-D
Executive Director, on behalf )
of the complaint filed by ) HEARINGS EXAMINER'S SECOND
BRUCE PIED, ) SUPPLEMENTAL FINDINGS
) OF FACT, CONCLUSIONS OF
and ) LAW AND RECOMMENDED ORDER
)
BRUCE PIED, )
)
Complainant-Intervenor, )
)
vs. )
)
ALOHA ISLANDAIR, INC., )
)
Respondent. )
_______________________________)
) Consolidated with
WILLIAM D. HOSHIJO, ) Docket No. 98-008-E-D-RET
Executive Director, on behalf )
of the complaint filed by )
BRUCE PIED, )
)
and )
)
BRUCE PIED, )
)
Complainant-Intervenor, )
)
vs. )
)
ALOHA ISLANDAIR, INC., )
)
Respondent. )
_______________________________)


HEARINGS EXAMINER'S SECOND SUPPLEMENTAL FINDINGS OF
FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER


I. INTRODUCTION
On November 29, 1999 this Hearings Examiner issued her
Supplemental Findings of Fact, Conclusions of Law and Recommended
Order in this case. On March 10, 2000 the Commission issued an
order sua sponte remanding this case to determine the specific
amounts of back pay and front pay to be awarded to Complainant in
accordance with this Hearings Examiner's recommended decision filed
on May 28, 1999, and the supplemental recommended order mentioned
above.
On March 13, 2000 Respondent Aloha IslandAir, Inc.
("IslandAir") filed a motion for reconsideration of the
Commission's March 10, 2000 order. On March 14, 2000 the
Commission issued an order summarily denying that motion.
On March 15, 2000 a scheduling conference was held at the
Hawaii Civil Rights Commission conference room and by telephone
conference. Participating were: Enforcement Attorney Cheryl
Tipton and law clerk Jayna Kim on behalf of the Executive Director;
David F. Simons, Esq. on behalf of Complainant; and Richard M.
Rand, Esq. on behalf of IslandAir and under protest. On March 16,
2000 this Hearings Examiner issued a third scheduling conference
order.
On March 29, 2000 Complainant filed its submission regarding
calculation of back pay and front pay and the Executive Director
filed a joinder in this submission. On April 20, 2000 Respondent
filed its supplemental brief on these issues. With the agreement
of the parties, Complainant filed a Submission of Modified
Calculations of Back Pay and Front Pay on May 4, 2000.
On May 5, 2000 IslandAir requested further hearing on the
issue of front pay. On May 12, 2000 this Hearings Examiner issued
an order re-opening the hearing to take further evidence on the
issue of front pay. A hearing on the issue of front pay was held
on July 20, 2000. In attendance were: David F. Simons, Esq. and
paralegal K. Bartlett Durand, Jr. on behalf of Complainant;
Complainant Bruce Pied; Enforcement Attorney Cheryl Tipton on
behalf of the Executive Director; and Richard M. Rand, Esq. on
behalf of IslandAir. On July 21, 2000 Complainant submitted a
supplemental application for statutory award of costs and
attorneys' fees. On July 31, 2000 the parties filed supplemental
post-hearing briefs on the issues of front pay, costs and fees.
Having reviewed and considered the supplemental briefs
together with the entire record of these proceedings, this Hearings
Examiner hereby renders the following second supplemental findings
of fact, conclusions of law and recommended order.


II. FINDINGS OF FACT[1]
34A. Since May 17, 1999 Complainant has been employed as a
first officer with Polar Air Cargo, Inc. (hereinafter "Polar Air")
flying 747 jets. Complainant has accumulated 550 hours of 747 jet
time and 4,800 hours of total air time. He will be eligible to
upgrade to a captain position at Polar Air in approximately 2-1/2
years. (Tr. at 879, 906-907, 946; Ex. 113)
34B. Polar Air is a scheduled and non-scheduled charter
operation which flies freight and does not fly passengers. It is
based in New York and Miami, and its flight routes cover the entire
world. Pilots at Polar Air are guaranteed a minimum of 60-68 hours
of flight pay, must contribute $58 per month for family medical
insurance and receive 1%-2% in matching funds in their 401K plans.
(Tr. at 880-881, 885, 912, 918, 925-927, 970, 978-979, 984; Exs.
95, 100)
34C. At Polar Air, Complainant often bids on the pacific rim
route because it usually has the largest block of days off. This
route requires Complainant to fly from New York to Chicago, Los
Angeles, Honolulu, Fiji, Australia, Hong Kong, Russia, Anchorage,
Chicago and back to New York. When commuting to and from Polar
Air's base in New York, Complainant catches a flight to Los
Angeles, stays over night, then catches a flight to New York in
order to arrive at work on time and be ready to fly. When flying
the pacific rim route, Complainant is able to return home to Kona
about 2-3 times per month. (Tr. at 891-903, 923, 976; Ex. 95)
34D. Complainant has joint custody of his children with his
ex-wife. However, because of Complainant's job at Polar Air, his
children can live with him only a few days each month and spend the
majority of the month living with their mother. (Tr. at 884-885,
920-921)
34E. Aloha Airlines and Hawaiian Airlines are the two main
national airlines based in Hawaii. These airlines have flight
routes to the mainland west coast, within Hawaii and some pacific
islands. Pilots at Aloha Airlines are guaranteed a minimum of 70-
80 hours of flight pay per month and receive free medical benefits
and a fully funded pension plan of approximately 6% of their
salary. Pilots at Hawaiian Airlines are guaranteed a minimum of
75 hours of flight pay per month. (Tr. at 1003-1005, 1009; Exs.
93, 94, 96, 99)
34F. Complainant's first officer position at Polar Air is not
comparable or substantially equivalent to a first officer position
with Aloha or Hawaiian Airlines. Complainant has to commute
significantly farther (New York as opposed to Honolulu) to arrive
at work. Complainant also flies longer routes (across the mainland
United States, Honolulu, the pacific, Asia and back to New York)
than the routes flown by Aloha or Hawaiian Airlines. Because of
the longer commute to work and routes flown, Complainant is not
able to return home to Kona as often as he would if he worked for
Aloha or Hawaiian Airlines. Complainant receives less minimum
hours of flight pay, less pay per month[2] and less medical and
pension benefits than first officers at Aloha or Hawaiian Airlines.
(Tr. at 883, 949-952, 981; Exs. 96, 99, 100)

Finding of Fact No. 35 is amended as follows:
35. Complainant's actual income, the federal and state taxes
on such income and the value of the benefits he received from
August 31, 1990 to April 30, 2000 are as follows:

period earnings taxes benefits

8-31-90 to 12-31-90 2,784 78 0
1-1-91 to 12-31-91 8,267 427 0
1-1-92 to 12-31-92 12,588 1,119 0
1-1-93 to 12-31-93 2,408 67 512
1-1-94 to 12-31-94 9,114 470 2,279
1-1-95 to 12-31-95 2,533 71 3,520
1-1-96 to 12-31-96 17,322 1,801 8,114
1-1-97 to 12-31-97 5,076 262 0
1-1-98 to 12-31-98 40,199 6,870 0
1-1-99 to 12-31-99 20,778 2,770 2,188
1-1-00 to 4-30-00 11,970 1,064 1,038

totals: 133,038 14,998 17,651



(Tr. at 195-196, 198-200, 889, 969; Exs. 55, 56, 57, 58, 59, 60,
61, 62, 100, 102; Stipulation Regarding Complainant Bruce A. Pied's
Correct Pay and Benefits; Ex. 1 attached to Complainant's
Submission of Calculations of Back Pay and Front Pay; Ex. 1
attached to Complainant's Submission of Modified Calculations of
Back Pay and Front Pay)

Finding of Fact No. 38 is amended as follows:
38. The income Complainant would have earned, the federal and
state taxes on such income and the value of benefits he would have
received if he were a first officer with IslandAir from August 31,
1990 through August 31, 1995, a captain with IslandAir from
August 31, 1995 to August 31, 1998 and a first officer with Aloha
Airlines from August 31, 1998 to April 30, 2000 are as follows:

period earnings taxes benefits

8-31-90 to 12-31-90 4,815 134 6,609
1-1-91 to 12-31-91 14,493 1,288 13,617
1-1-92 to 12-31-92 16,065 1,670 13,745
1-1-93 to 12-31-93 17,692 1,840 13,879
1-1-94 to 12-31-94 21,849 2,913 14,220
1-1-95 to 8-31-95 15,628 4,247 9,140
8-31-95 to 12-31-95 13,065 4,500
1-1-96 to 12-31-96 39,194 6,373 15,642
1-1-97 to 12-31-97 38,256 6,220 15,565
1-1-98 to 8-31-98 25,504 5,643 9,627
8-31-98 to 12-31-98 9,200 4,719*
1-1-99 to 12-31-99 50,655 9,421 18,842
1-1-00 to 4-30-00 20,421 2,273 6,692

totals: 286,837 42,470 146,697



* does not include per diem
(Exs. 54, 91, 99, NN; Ex. 1 attached to Complainant's Submission of
Calculations of Back Pay and Front Pay; Ex. 1 attached to
Complainant's Submission of Modified Calculations of Back Pay and
Front Pay)

Finding of Fact No. 39 is amended as follows:
39. Complainant's past lost earnings, the federal and state
taxes on such lost earnings and his past lost benefits are
therefore as follows:
lost lost

period earnings taxes benefits

8-31-90 to 12-31-90 2,031 57 6,609
1-1-91 to 12-31-91 5,227 862 13,617
1-1-92 to 12-31-92 3,477 552 13,745
1-1-93 to 12-31-93 15,284 1,773 13,367
1-1-94 to 12-31-94 12,735 2,442 11,941
1-1-95 to 12-31-95 26,160 4,176 10,120
1-1-96 to 12-31-96 21,872 4,571 7,528
1-1-97 to 12-31-97 33,180 5,958 15,565
1-1-98 to 12-31-98 -5,495 -1,227 14,346
1-1-99 to 12-31-99 29,877 6,651 16,554
1-1-00 to 4-30-00 8,451 1,659 5,654

(Tr. at 969; Ex. 1 attached to Complainant's Submission of
Calculations of Back Pay and Front Pay; Ex. 1 attached to
Complainant's Submission of Modified Calculations of Back Pay and
Front Pay)
39A. Complainant's annual after tax loss amounts, the
cumulative loss amounts and the statutory interests on such
cumulative loss amounts are as follows:

period annual cumulative 10% annual
loss loss interest


8-31-90 to 12-31-90 8,583 8,583 858

1-1-91 to 12-31-91 18,982 27,565 2,756
1-1-92 to 12-31-92 16,671 44,236 4,424
1-1-93 to 12-31-93 26,878 71,114 7,111
1-1-94 to 12-31-94 22,234 93,348 9,335
1-1-95 to 12-31-95 32,104 125,452 12,545
1-1-96 to 12-31-96 24,829 150,281 15,028
1-1-97 to 12-31-97 42,787 193,068 19,306
1-1-98 to 12-31-98 10,078 203,146 20,314
1-1-99 to 12-31-99 39,780 242,926 24,292
1-1-00 to 4-30-00 12,446 255,372 25,537

totals: 255,272 141,506

(Ex. 1 attached to Complainant's Submission of Calculations of Back
Pay and Front Pay; Ex. 1 attached to Complainant's Submission of
Modified Calculations of Back Pay and Front Pay)

Finding of Fact No. 40 is amended as follows:
40. The amount Complainant would earn and the benefits he
would receive (not including per diem) if he were a third year
first officer with Aloha Airlines from May 1, 2000 and continues to
be a first officer until he reaches age 60, and the present value
of those total amounts are as follows:
period earnings benefits

5-1-00 to 12-31-00 40,841 13,382
1-1-01 to 12-31-01 71,700 20,894
1-1-02 to 12-31-02 81,690 21,493
1-1-03 to 12-31-03 87,743 21,857
1-1-04 to 12-31-04 88,713 21,953
1-1-05 to 12-31-05 89,311 22,951
1-1-06 to 12-31-06 89,939 21,988
1-1-07 to 12-31-07 90,571 22,026
1-1-08 to 12-31-08 91,234 22,104
1-1-99 to 12-31-99 92,053 22,115
1-1-10 to 12-31-10 92,053 22,115
1-1-11 to 12-31-11 92,053 22,115
1-1-12 to 12-31-12 92,053 22,153

totals: 1,099,954 277,146

present value: 935,056 236,708

(Tr. at 957, 989; Exs. 91, 99; Ex. 1 to Stipulation Regarding
Complainant Bruce A. Pied's Correct Pay and Benefits; Ex. 2
attached to Complainant's Submission of Calculations of Back Pay
and Front Pay; Ex. 1 attached to Complainant's Submission of
Modified Calculations of Back Pay and Front Pay)
41. The amounts Complainant will earn if he is employed as a
first officer with IslandAir from May 1, 2000 to December 31, 2004;
as a captain with IslandAir from January 1, 2005 to December 31,
2007; and as a first officer with Aloha Airlines from January 1,
2008 to December 31, 2012, and the present value of those total
amounts are as follows:

period earnings benefits

5-1-00 to 12-31-00 12,505 9,322
1-1-01 to 12-31-01 18,758 13,895
1-1-02 to 12-31-02 20,267 13,989
1-1-03 to 12-31-03 22,103 14,103
1-1-04 to 12-31-04 23,542 14,192
1-1-05 to 12-31-05 44,717 15,505
1-1-06 to 12-31-06 46,859 15,638
1-1-07 to 12-31-07 49,480 15,800
1-1-08 to 12-31-08 61,262 20,074
1-1-99 to 12-31-99 71,700 20,894
1-1-10 to 12-31-10 81,690 21,473
1-1-11 to 12-31-11 87,743 21,857
1-1-12 to 12-31-12 88,713 21,953

totals: 629,339 218,715

present value: 515,965 184,364

(Ex. 99; Ex. 2 attached to Complainant's Submission of
Calculations of Back Pay and Front Pay; Ex. 1 attached to
Complainant's Submission of Modified Calculations of Back Pay and
Front Pay)



III. CONCLUSIONS OF LAW[3]

A. Back Pay (amended)
Complainant's income and the value of the benefits he received
from August 31, 1990 through April 30, 2000 was $150,689. The
amount he would have earned as a first officer and captain with
IslandAir, and as a first officer with Aloha Airlines and the value
of benefits he would have received during this same period would
have been $433,534. Thus, his pre-tax loss amount for this period
is $282,845. Federal and state income taxes on Complainant's
earnings losses are $27,472. Complainant's total after tax loss
amount is therefore $255,373.
Prejudgment interest on Complainant's after tax loss amount is
$141,506.
Federal and state income taxes on Complainant's after tax loss
amount and his prejudgment interest amount ($396,879) are $169,416.
I therefore determine that Respondent should be ordered to pay
Complainant back pay in the amount of $566,295.

B. Front Pay (amended)
Pursuant to the Commission's March 10, 2000 order, the yearly
differentials between Complainant's projected earnings as a first
officer with a national airline based in Hawaii (see, FOF No. 40)
and his projected earnings if he is hired as a first officer with
IslandAir and advances in accordance with my earlier recommended
decision (see, FOF No. 41) are:

period earnings benefits

5-1-00 to 12-31-00 28,336 4,060
1-1-01 to 12-31-01 52,942 6,999
1-1-02 to 12-31-02 61,423 7,504
1-1-03 to 12-31-03 65,640 7,754
1-1-04 to 12-31-04 65,171 7,761
1-1-05 to 12-31-05 44,594 7,446
1-1-06 to 12-31-06 43,080 6,350
1-1-07 to 12-31-07 41,091 6,226
1-1-08 to 12-31-08 29,972 2,030
1-1-99 to 12-31-99 20,353 1,221
1-1-10 to 12-31-10 10,363 622
1-1-11 to 12-31-11 4,310 258
1-1-12 to 12-31-12 3,340 200

totals: 470,615 58,431

present value: 419,091 52,344


The present value of the total amount of such differentials is
$471,435.
Respondent IslandAir argues that this Hearings Examiner's May
28, 1999 recommended order regarding instatement and front pay are
moot since Complainant has already obtained employment as a first
officer with Polar Air. However, the record shows that Complainant
sought and still seeks a position flying passenger planes with a
national airline based in Hawaii. (See, FOF Nos. 7, 37; Tr. at
30-32, 883, 885, 947) Complainant's present position with Polar
Air is not comparable or substantially equivalent. (See, FOF No.
34F) Jobs are substantially equivalent if they are in the same
line of work and afford virtually identical compensation,
responsibility, working conditions, status and promotional
opportunities. In Re Shaw/Sam Teague, Ltd. et.al., Docket No. 94-
001-E-P (March 3, 1995); Ford v. Nicks, 866 F.2d 865, 49 EPD
38,659 at 55,600 (6th Circ. 1989). The record shows that
Complainant's monthly pay[4] and benefits as a first officer at
Polar Air are lower than those of first officers at Aloha and
Hawaiian Airlines. In addition, Complainant has to commute farther
to work, fly longer routes and cannot return home to Hawaii more
than 2-3 times per month.
I therefore continue to recommend that Respondent be ordered
to place Complainant in the next IslandAir ground school class that
includes first officer pilots and to pay Complainant front pay
consisting of a supplemental salary based on the yearly
differentials as stated above until he obtains a first officer
position flying passenger planes with a national airlines based in
Hawaii or until he reaches age 60.

D. Attorney Fees and Costs (addendum)
Pursuant to the Commission's June 3, 1999 order sua sponte
remanding case for further proceedings, I will consider
Complainant's supplemental request for attorneys' fees and costs.
Complainant seeks $7,329.12 in costs expended since his last
application and award in November 1999.[5] Complainant lists fees
of $5,706.00 from his expert witness, Dr. Loudat, without providing
an invoice or breakdown. Since the first hearing in this case, Dr.
Loudat has only modified certain figures in his initial report. I
will therefore decrease the award of his costs to $2,000. I also
feel that a rate beyond 10 cents per copy is excessive and will
award $352 for copying costs. Finally, I decline to award any
costs for facsimiles, since Complainant also seeks long distance
telephone costs. Complainant therefore should be awarded
additional costs of $2,981.62 for a total of $21,402.62.
Complainant seeks additional attorney's fees in the amount of
$32,143.33.[6] I recommend that the fees sought be reduced by
$6,081.25. Specifically, I would reduce Complainant's fees by the
following hours:
David Simons
2.1 hours t/c conf/mtg with KBD re: post hearing brief
research
1.5 hours memo re: discovery of contract
9.5 hours preparing for argument before Commission


K. Bartlett Durand (paralegal)

1.75 hours reviewing documents produced by Respondent
15.7 hours preparing for hearing before Commission
3.4 hours conf. with DFS re: motion to quash
1.2 hours pulling info. for amicus
3.0 hours analyzing documents from Hawaiian Airlines
2.0 hours work on evidence for hearing
4.5 hours conf. with DFS and work on exhibits
1.5 hours attorneys fee application and preparation for
hearing
Therefore, the additional fees to be awarded should be
$25,808.42 for a total of $121,745.30. Because this total
attorney's fees amount is greater than the amount of punitive
damages awarded[7], it shall constitute the whole of Complainant's
punitive damage award. Lee v. Aiu, 85 Haw. 19, 35 (1997)
(attorneys' fees cannot be awarded in addition to exemplary
damages; rather, they must constitute the whole of the punitive
damage award or be accounted for a portion of the total punitive
damage award).[8]

IV. RECOMMENDED ORDER
Based on the matters set forth above, I recommend that
pursuant to H.R.S. s 368-17, the Commission should order:
1. Respondent to pay Complainant back pay in the amount of
$566,295.
2. Respondent to pay Complainant front pay consisting of a
supplemental salary based on the yearly differentials
stated in Conclusion of Law B above, until he obtains a
first officer position flying passenger planes with a
national airlines based in Hawaii or until he reaches age
60.
3. Alternatively, Respondent to pay Complainant front pay in
the amount of $471,435.
4. Respondent to pay Complainant punitive damages in the
amount of $121,745.30.
5. Respondent to pay Complainant his costs in the amount of
$21,402.62.

Dated: Honolulu, Hawaii, August 21, 2000.

HAWAII CIVIL RIGHTS COMMISSION





______________________________
LIVIA WANG
Hearings Examiner


Copies sent to:

Cheryl Tipton, Esq., HCRC Enforcement Attorney
David F. Simons, Esq., Attorney for Complainant-Intervenor
Richard M. Rand, Esq., Attorney for Respondent

footnotes:

1. To the extent that the following findings of fact also
contain conclusions of law, they shall be deemed incorporated into
the conclusions of law.

2. Except for the first year when Hawaiian Airlines pays
$1,700/month and Aloha Airlines pays $2,300/month, and the second
year monthly salary at Hawaiian Airlines.

3. To the extent that the following conclusions of law also
contain findings of fact, they shall be deemed incorporated into
the findings of fact.

4. Except for the first year when Hawaiian Airlines pays
$1,700/month and Aloha Airlines pays $2,300/month, and the second
year monthly salary at Hawaiian Airlines.

5. In my November 29, 1999 Supplemental Findings of Fact,
Conclusions of Law and Recommended Order, I determined
Complainant's costs to be $18,421.

6. In my November 29, 1999 Supplemental Findings of Fact,
Conclusions of Law and Recommended Order, I determined
Complainant's attorney's fees to be $95,936.88.

7. In my November 29, 1999 Supplemental Findings of Fact,
Conclusions of Law and Recommended Order, I determined that
Complainant should be awarded $100,000 in punitive damages.

8. Complainant and the Executive Director argue that H.R.S.
ss 368-17(a)(9) and 378-5(c) allow the award of attorneys' fees in
addition to an award of punitive damages. However, s 368-17(a)(9)
states that punitive damages may include payment of all or a
portion of a complainant's attorneys' fees, which is in accord with
Lee v. Aiu, supra. H.R.S. s 378-5(c) applies to civil actions
brought in circuit court, not to this Commission.